oThese business
records provisions were added to the FISA framework statute in 1998, but
they’ve been substantially modified since then by amendatory legislation.[8]

oThe title of
this chapter is very misleading—“Access to Certain Business Records for Foreign
Intelligence and International Terrorism Investigations,” doesn’t adequately
describe the incredible scope of tangible items that can be seized by the
government using the provisions in Subchapter D.[9]

oIt’s definitely
not just business records they’re after with this new tool.

oTo give you an
example, it allows the FBI to apply for an order demanding the production of
things like:

oSome the more
controversial changes to FISA made after 9/11 were only intended to remain in
force for a limited number of years and were subject to sunset provisions where
they would cease to have effect after a certain date, but investigations
initiated before that date are exempt and allowed to proceed.[11]

oThis contains
the controversial provisions of the Protect America Act of 2007[14] that allowed—for a 6-month[15] period ending in 2008—the DNI
or Attorney General to authorize warrantless spying on American citizens
reasonably believed to be traveling abroad.[16]

§This statute has since expired, but while it was in effect it
effectively repealed the Fourth Amendment rights of Americans travelling
overseas, and placed operations targeting them outside the rule of law while
the Protect America Act was in effect.[17]

§The constitutionality of the act was highly suspect,[18] but it wasn’t in force long
enough for any person to have time to gain standing and bring a successful
challenge.

§The statute was designed so that any legal challenge to the
program would be rendered moot when the act sunset six months after its
passage.

§This guaranteed that even if somebody did get standing to
challenge the program, their case would have been guaranteed to be thrown out
of court without a ruling.

oThis contains
the telecom immunity that was part of the FISA Amendment Act of 2008.[20]

oThis
retroactive immunity created quite a stir when it was being considered in
Congress because it made it impossible for injured Americans to sue any of the
telecommunications companies that broke the law[21] by assisting the NSA’s
warrantless surveillance program, later dubbed the “Terrorist Surveillance
Program” (TSP).[22]

oInjured
Americans targeted by the program can’t even bring a suit seeking declaratory
or injunctive relief.

oUnder this
statute, the Attorney General of the United States has the power to demand
judges to dismiss any TSP-related cases.[23]

§ This is a pretty unusual provision for Congress to enact
because of the separation of powers.

§But it’s on the books, and codified as Subchapter G under Chapter
36 of Title 50 of the United States Code.

That’s it for the Foreign Intelligence Surveillance Act.

FISA is the main framework statute discussed in later
courses on IntelligenceLaw.com.

ØEffect of Modern Technology and FISA Loopholes: There are
countless incredible loopholes in FISA’s protections and new advancements in
surveillance technology since FISA was passed over 30 years ago have exploited
these gaps and rendered FISA virtually meaningless today.

ØCall for a New Framework Statute on Intelligence Activities:
This is why many civil liberties advocates are fighting to get Congress to
enact a comprehensive new framework statute governing domestic intelligence
operations across the board to handle all of the things that have fallen
through the cracks.

ØLoophole-Ridden Definition of “Electronic Surveillance:”
Because of the way “electronic surveillance” is defined, the government can get
out of virtually all legal restrictions imposed on “electronic surveillance”
simply by getting one person’s consent—even if that one person is their own
agent.[24]

o3 of the 4
possible categories apply only to efforts involving “communications.”

oThese 3 of 4
categories are defined so that government spying is not considered to be
“electronic surveillance” if the data being searched and seized by intelligence
gathers wasn’t part of a “communication.”[25]

§Remember that FISA was drafted back before the Internet, so when
Congress thought about spying on Americans it was only thinking about spying on
communications.

§Since “electronic surveillance” is defined as techniques
targeting “communictations” this means that cyber espionage by the NSA that
involves searching and seizing the data stored on your computer is not even
governed by FISA at all.

§FISA governs only “electronic surveillance.”

§“Electronic surveillance” is defined so it only includes methods
targeting “communications.”

§Non-communicated data stored on your laptop—including all of your
files, your First Amendment work product, computer program data, images,
EVERYTHING that makes up the bulk of your computer files—NONE OF IT is
protected.

§Communications data makes up virtually none of the space on your
hard drive.

§Because FISA’s definition of “electronic surveillance” was
written back in 1978, none of the modern computer data you would assume would
be protected is given any protection at all.

§It exists in a legal vacuum where no statutory law applies to
regulate what the NSA can search and seize.

oThat same
electronic spying method with just one informant’s consent is no longer
“electronic surveillance” anymore.

oThis is
significant because FISA’s restrictions—including the minimization
procedures—apply only to “electronic surveillance”

oSince the
definition is not static and definite, but rather is malleable and subjective,
creates a gigantic loophole in FISA where agencies can avoid compliance with
the entire statute simply by figuring out ways to say that what they’re doing
is not technically “electronic surveillance” as defined by FISA.

oThis could
allow endless new types of warrantless surveillance that use high-tech methods
that target “non-communicated” data or that arguably involve the
“consent” of a third-party somewhere along the line.

oThe sneaky way
“electronic surveillance” is defined under FISA provides perhaps the greatest
hidden loophole in the rights of Americans citizens in U.S. intelligence law.

ØWarrantless Consent Cyber-Searches and Seizures: The
definition of “electronic surveillance” is also defined so that the very same
tactics are not even considered to be “electronic surveillance” anymore unless
the government would need a warrant to perform the tactic, which means that if
government agents are able to force a third-party into consenting to monitoring
your is able to get one party’s consent.[26]

Footnotes

[2]SeeElizabeth B. Bazan, Congressional Research
Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign
Intelligence Surveillance Court of Review Decisions (2007), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf
(“FISA establishes two special courts, the U.S. Foreign Intelligence
Surveillance Court (FISC) and the U.S. Foreign Intelligence Surveillance Court
of Review (Court of Review), comprised of federal judges to address
applications for court orders authorizing such electronic surveillance,
physical searches, installation and use of pen registers and trap and trace
devices, and production of tangible things. Under 50 U.S.C. § 1803(a), the
Chief Justice of the United States must publicly designate eleven U.S. district
court judges from seven of the United States judicial circuits, of whom no
fewer than three must reside within 20 miles of the District of Columbia. These
eleven judges constitute the U.S. Foreign Intelligence Surveillance Court
(FISC), which has jurisdiction over applications for and orders approving
electronic surveillance, physical searches, pen registers or trap and trace
devices or orders for production of tangible things anywhere within the United
States under FISA. If an application for electronic surveillance or a physical
search under this Act is denied by one judge of this court, it may not then be
considered by another judge on the court. If a judge denies such an
application, he or she must immediately provide a written statement for the
record of the reason(s) for this decision. The Chief Justice also publicly
designates the three U.S. district court or U.S. court of appeals judges who
together make up the U.S. Foreign Intelligence Surveillance Court of Review
(Court of Review). This court has jurisdiction to review any denial of an order
under FISA. If the United States appeals an FISC denial of an application, the
record from the FISC must be transmitted under seal to the Court of Review
established. If the Court of Review determines that an application was properly
denied, again a written statement of the reason(s) for the court’s decision
must be provided for the record. The United States may petition for a writ of
certiorari to the United States Supreme Court for review of that decision. All
proceedings under FISA must be conducted expeditiously, and the record of all
proceedings including applications and orders granted, must be maintained under
security measures established by the Chief Justice in consultation with the
Attorney General and the Director of National Intelligence. Three FISC judges
who reside within 20 miles of the District of Columbia, or, if all of such
judges are unavailable, other judges of the FISC designated by the presiding
judge of such court, comprise a petition review pool which has jurisdiction to
review petitions filed pursuant to 50 U.S.C. § 1861(f)(1) challenging
production orders and non-disclosure orders. The judges of the FISC and the
Court of Review serve for seven year terms and may not be redesignated. The
FISC and the Court of Review may establish rules and procedures, and may take
such actions, as are reasonably necessary to administer their responsibilities
under FISA.”) (internal footnotes omitted).

[4] Act Oct. 14, 1994, Pub.
L. No. 103-359, Title VIII, § 807(c), 108 Stat. 3453; see alsoElizabeth B. Bazan, Congressional Research
Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign
Intelligence Surveillance Court of Review Decisions (2007), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf
(“Physical searches for foreign intelligence purposes are addressed in 50 U.S.C.
§ 1821 et seq. While tailored for physical searches, the provisions in
many respects follow a pattern similar to that created for electronic
surveillance. The definitions from 50 U.S.C. § 1801 for the terms “foreign
power,” “agent of a foreign power,” “international terrorism,” “sabotage,”
“foreign intelligence information,” “Attorney General,” “United States person,”
“United States,” “person,” and “State” also apply to foreign intelligence
physical searches except where specifically provided otherwise. Minimization
procedures also apply to physical searches for foreign intelligence purposes.
Those defined under 50 U.S.C. § 1821(4) are tailored to such physical searches
and, like those applicable to electronic surveillance under 50 U.S.C. §
1801(h), these procedures are designed to minimize acquisition and retention,
and to prohibit dissemination, of nonpublicly available information concerning
unconsenting U.S. persons, consistent with the needs of the United States to
obtain, produce and disseminate foreign intelligence.”) (internal footnotes
omitted).

[5]SeeElizabeth B. Bazan, Congressional Research
Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence
Surveillance Court of Review Decisions (2007), available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf
(“The requirements for application for an order for a physical search under
FISA are included in 50 U.S.C. § 1823. While tailored to a physical search, the
requirements strongly parallel those applicable to electronic surveillance
under 50 U.S.C. § 1804(a)(1)-(9). Like Section 1804(a)(7)(B) with respect to
required certifications for an application for electronic surveillance under
FISA, Section 1823(a)(7)(B) was amended by P.L. 107-56, Section 218, to require
that the Assistant to the President for National Security Affairs or designated
Executive Branch official certify, among other things, that a significant
purpose (rather than “that the purpose”) of the physical search is to obtain
foreign intelligence information. Section 1823(d) also parallels Section
1804(e) (dealing with requirements for some applications for electronic
surveillance under FISA), in that, if requested in writing by the Director of
the FBI, the Secretary of Defense, the Secretary of State, or the Director of
National Intelligence, the Attorney General must personally review an
application for a FISA physical search if the target is one described by
Section 1801(b)(2). 50 U.S.C. § 1801(b)(2) deals with targets who knowingly
engage in clandestine intelligence gathering activities involving or possibly
involving violations of federal criminal laws by or on behalf of a foreign
power; targets who, at the direction of an intelligence service or network of a
foreign power, engage in other clandestine intelligence activities involving or
potentially involving federal crimes by or on behalf of a foreign power;
targets who knowingly engage in sabotage or international terrorism, activities
in preparation for sabotage or international terrorism, or activities on behalf
of a foreign power; targets who knowingly aid, abet, or conspire with anyone to
engage in any of the previously listed categories of activities; or targets who
knowingly enter the United States under false identification by or on behalf or
a foreign power or who assume a false identity on behalf of a foreign power
while present in the United States. Should the Attorney General, after
reviewing an application, decide not to approve it, he must provide written
notice of his determination to the official requesting the review of the
application, setting forth any modifications needed for the Attorney General to
approve it. The official so notified must supervise the making of the suggested
modifications if the official deems them warranted. Unless the Attorney General
or the official involved is disabled or otherwise unable to carry out his or
her respective responsibilities under Section 1823, those responsibilities are
non-delegable.”) (internal footnotes omitted).

[7] Subchapter D: Access to
Certain Business Records for Foreign Intelligence Purposes is codified as 50
U.S.C. §§ 1861-1863. It allows the FBI Director or his designee to make an
application for an order requiring the production of any tangible item. 50
U.S.C. § 1861(a) (2010) (“Application for order; conduct of investigation
generally. (1) Subject to paragraph (3), the Director of the Federal Bureau of
Investigation or a designee of the Director (whose rank shall be no lower than
Assistant Special Agent in Charge) may make an application for an order
requiring the production of any tangible things (including books, records,
papers, documents, and other items) for an investigation to obtain foreign
intelligence information not concerning a United States person or to protect
against international terrorism or clandestine intelligence activities,
provided that such investigation of a United States person is not conducted
solely upon the basis of activities protected by the first amendment to the
Constitution.”).

[9]SeeElizabeth B. Bazan, Congressional Research
Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign
Intelligence Surveillance Court of Review Decisions (2007), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf
(“Added in 1998, Title V of FISA, 50 U.S.C. § 1861 et seq., was substantially
changed by P.L. 107-56, and modified further by P.L. 107-108, P.L. 109-177, and
P.L. 109-178. Although denominated “access to certain business records for
foreign intelligence and international terrorism investigations,” the reach of
Section 1861, as amended by the USA PATRIOT Act, P.L. 107-108, P.L. 109-177,
and P.L. 109-178, is now substantially broader than business records alone.”).

[10]See 50 U.S.C. §
1861(a)(3) (2010) ("In the case of an application for an order requiring
the production of library circulation records, library patron lists, book sales
records, book customer lists, firearms sales records, tax return records,
educational records, or medical records containing information that would
identify a person, the Director of the Federal Bureau of Investigation may
delegate the authority to make such application to either the Deputy Director
of the Federal Bureau of Investigation or the Executive Assistant Director for
National Security (or any successor position). The Deputy Director or the
Executive Assistant Director may not further delegate such authority.").

[11] Subchapter D contains
some of the provisions that were scheduled to sunset on Dec. 31, 2009. See
Act March 9, 2006, Pub. L. No. 109-177, Title I, § 102(b)(1), 120 Stat. 195
(stating “Effective December 31, 2009, the Foreign Intelligence Surveillance
Act of 1978 is amended so that sections 501, 502, and 105(c)(2) [50 U.S.C. §§
1861, 1862, and 1805(c)(2)] read as they read on October 25, 2001.”); see
alsoElizabeth B. Bazan,
Congressional Research Serv., The Foreign Intelligence Surveillance Act: An
Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance
Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions
(2007), available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf
(“Section 224 of the USA PATRIOT Act set a sunset for many of the provisions in
P.L. 107-56 of December 31, 2005, including all of the FISA amendments except
that in Section 208 of P.L. 107-56, which increased the number of FISC judges
from 7 to 11. Section 224 was repealed by the USA PATRIOT Improvement and
Reauthorization Act of 2005, P.L. 109-177, Subsection 102(a). Subsection 102(b)
of P.L. 109-177 provided that Sections 105(c)(2) of FISA, 50 U.S.C. §
1805(c)(2) (dealing with multipoint or roving wiretaps under FISA), 501 of
FISA, 50 U.S.C. § 1861 (dealing with production of any tangible thing under
FISA), and 502 of FISA, 50 U.S.C. § 1862 (dealing with congressional oversight
of such production under FISA) will sunset on December 31, 2009. However, Subsection
102(b) of P.L. 109-177 excepts from the application of the sunset provision any
particular foreign intelligence investigations that began before December 31,
2009, or any criminal offenses or potential offenses which began or occurred
before December 31, 2009. As to those particular investigations or offenses,
applicable provisions would continue in effect after December 31, 2009.”).

[14] The Protect America
Act, P.L. 110-55; see alsoElizabeth
B. Bazan, Congressional Research Serv., P.L. 110-55, the Protect America Act of
2007: Modifications to the Foreign Intelligence Surveillance Act (2007),
available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL34143_8-23-2007.pdf
(“On August 5, 2007, P.L. 110-55, the Protect America Act of 2007, was signed
into law by President Bush, after having been passed by the Senate on August 3
and the House of Representatives on August 4. The measure, introduced by
Senator McConnell as S. 1927 on August 1, makes a number of additions and
modifications to the Foreign Intelligence Surveillance Act of 1978 (FISA), as
amended, 50 U.S.C. §§ 1801 et seq., adds additional reporting
requirements, and sunsets in 180 days. This report describes the provisions of
P.L. 110-55, discusses its possible impact on and parallels to existing law,
and summarizes the legislative activity with respect to S. 1927, H.R. 3356, and
S. 2011. The Foreign Intelligence Surveillance Act of 1978 was enacted in
response both to the Committee to Study Government Operations with Respect to
Intelligence Activities (Church Committee) revelations with regard to past
abuses of electronic surveillance for national security purposes and to the
somewhat uncertain state of the law on the subject. In creating a statutory
framework for the use of electronic surveillance to obtain foreign intelligence
information, the Congress sought to strike a balance between national security
interests and civil liberties. Critical to an understanding of the FISA
structure are its definitions of terms such as “electronic surveillance” and
“foreign intelligence information.” P.L. 110-55 limits the construction of the
term “electronic surveillance” so that it does not cover surveillance directed
at a person reasonably believed to be located outside the United States. It also
creates a mechanism for acquisition, without a court order under a
certification by the Director of National Intelligence (DNI) and the Attorney
General, of foreign intelligence information concerning a person reasonably
believed to be outside the United States. The Protect America Act provides for
review by the Foreign Intelligence Surveillance Court (FISC) of the procedures
by which the DNI and the Attorney General determine that such acquisitions do
not constitute electronic surveillance. In addition, P.L. 110-55 authorizes the
Attorney General and the DNI to direct a person with access to the
communications involved to furnish aid to the government to facilitate such
acquisitions, and provides a means by which the legality of such a directive
may be reviewed by the FISC petition review pool. A decision by a judge of the
FISC petition review pool may be appealed to the Foreign Intelligence
Surveillance Court of Review, and review by the U.S. Supreme Court may be
sought by petition for writ of certiorari.”).

[15] The Protect America
Act, P.L. 110-55 was signed into law on August 5, 2007. Many of the provisions
were set to expire in 6-months, and were extended briefly for an additional 15
days before expiring on February 16, 2008. See Pub. L. No. 110-182
(extending effectiveness of the Protect America Act for 15 days beyond the
original sunset date).

[16] The Protect America Act
of 2007 inserted a clarification into FISA redefining “electronic surveillance”
so as not to be interpreted as applying to any surveillance conducted on
persons reasonably believed to be located abroad. See FISA § 105(A), 50
U.S.C. § 1805a (2007) (“Nothing in the definition of electronic surveillance
under section 101(f) [50 U.S.C. § 1801(f)] shall be construed to encompass
surveillance directed at a person reasonably believed to be located outside of
the United States.”). This provision sunset on February 16, 2008, subject to
saving provisions that validated orders approved during the statute’s short
lifespan. The provision was repealed on July 10, 2008 by the FISA Amendments
Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436. Section 105B contained the
now repealed procedures that were in effect during the 6-month U.S. citizen
intelligence collection extravaganza. FISA § 105B, 50 U.S.C. § 1805b (a)
(2007), repealed by FISA Amendments Act of 2008, Pub. L. No. 110-261,
122 Stat. 2436 (“Notwithstanding any other law, the Director of National
Intelligence and the Attorney General, may for periods of up to one year
authorize the acquisition of foreign intelligence information concerning
persons reasonably believed to be outside the United States if the Director of
National Intelligence and the Attorney General determine, based on the
information provided to them, that—(1) there are reasonable procedures in place
for determining that the acquisition of foreign intelligence information under
this section concerns persons reasonably believed to be located outside the
United States, and such procedures will be subject to review of the Court
pursuant to section 105C of this Act [50 U.S.C. § 1805c]; (2) the acquisition
does not constitute electronic surveillance; (3) the acquisition involves
obtaining the foreign intelligence information from or with the assistance of a
communications service provider, custodian, or other person (including any
officer, employee, agent, or other specified person of such service provider,
custodian, or other person) who has access to communications, either as they
are transmitted or while they are stored, or equipment that is being or may be
used to transmit or store such communications; (4) a significant purpose of the
acquisition is to obtain foreign intelligence information; and (5) the
minimization procedures to be used with respect to such acquisition activity
meet the definition of minimization procedures under section 101(h) [50 U.S.C.
§ 1801(h)]. This determination shall be in the form of a written certification,
under oath, supported as appropriate by affidavit of appropriate officials in
the national security field occupying positions appointed by the President, by
and with the consent of the Senate, or the Head of any Agency of the
Intelligence Community, unless immediate action by the Government is required
and time does not permit the preparation of a certification. In such a case,
the determination of the Director of National Intelligence and the Attorney
General shall be reduced to a certification as soon as possible but in no event
more than 72 hours after the determination is made.”); see also 50
U.S.C. § 1805b (b) (2007) (“A certification under subsection (a) is not
required to identify the specific facilities, places, premises, or property at
which the acquisition of foreign intelligence information will be directed.”); see
also 50 U.S.C. § 1805b (c) (2007) (“The Attorney General shall transmit as
soon as practicable under seal to the court established under section 103(a)
[50 U.S.C. § 1803(a)] a copy of a certification made under subsection (a). Such
certification shall be maintained under security measures established by the
Chief Justice of the United States and the Attorney General, in consultation
with the Director of National Intelligence, and shall remain sealed unless the
certification is necessary to determine the legality of the acquisition under
section 105B [50 U.S.C. § 1805b].”); see also 50 U.S.C. § 1805b (d)
(2007) (“An acquisition under this section may be conducted only in accordance
with the certification of the Director of National Intelligence and the
Attorney General, or their oral instructions if time does not permit the
preparation of a certification, and the minimization procedures adopted by the
Attorney General. The Director of National Intelligence and the Attorney
General shall assess compliance with such procedures and shall report such assessments
to the Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate under
section 108(a) [50 U.S.C. § 1808(a)].); see also 50 U.S.C. § 1805b (e)
(2007) (“With respect to an authorization of an acquisition under section 105B
[50 U.S.C. § 1805b], the Director of National Intelligence and Attorney General
may direct a person to—(1) immediately provide the Government with all
information, facilities, and assistance necessary to accomplish the acquisition
in such a manner as will protect the secrecy of the acquisition and produce a
minimum of interference with the services that such person is providing to the
target; and (2) maintain under security procedures approved by the Attorney General
and the Director of National Intelligence any records concerning the
acquisition or the aid furnished that such person wishes to maintain.”); see
also 50 U.S.C. § 1805b (f) (2007) (“The Government shall compensate, at the
prevailing rate, a person for providing information, facilities, or assistance
pursuant to subsection (e).”); see also 50 U.S.C. § 1805b (g) (2007)
(“In the case of a failure to comply with a directive issued pursuant to
subsection (e), the Attorney General may invoke the aid of the court
established under section 103(a) [50 U.S.C. § 1803(a)] to compel compliance
with the directive. The court shall issue an order requiring the person to
comply with the directive if it finds that the directive was issued in
accordance with subsection (e) and is otherwise lawful. Failure to obey an
order of the court may be punished by the court as contempt of court. Any
process under this section may be served in any judicial district in which the
person may be found.”); see also 50 U.S.C. § 1805b (h) (2007) (“(1) (A)
A person receiving a directive issued pursuant to subsection (e) may challenge
the legality of that directive by filing a petition with the pool established
under section 103(e)(1) [50 U.S.C. § 1803(e)(1)]. (B) The presiding judge designated
pursuant to section 103(b) [50 U.S.C. § 1803(b)] shall assign a petition filed
under subparagraph (A) to one of the judges serving in the pool established by
section 103(e)(1) [50 U.S.C. § 1803(e)(1)]. Not later than 48 hours after the
assignment of such petition, the assigned judge shall conduct an initial review
of the directive. If the assigned judge determines that the petition is
frivolous, the assigned judge shall immediately deny the petition and affirm
the directive or any part of the directive that is the subject of the petition.
If the assigned judge determines the petition is not frivolous, the assigned
judge shall, within 72 hours, consider the petition in accordance with the
procedures established under section 103(e)(2) [50 U.S.C. § 1803(e)(2)] and
provide a written statement for the record of the reasons for any determination
under this subsection. (2) A judge considering a petition to modify or set
aside a directive may grant such petition only if the judge finds that such
directive does not meet the requirements of this section or is otherwise
unlawful. If the judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the recipient to comply with
such directive. (3) Any directive not explicitly modified or set aside under
this subsection shall remain in full effect.”); see also 50 U.S.C. §
1805b (i) (2007) (“The Government or a person receiving a directive reviewed
pursuant to subsection (h) may file a petition with the Court of Review established
under section 103(b) [50 U.S.C. § 1803(b)] for review of the decision issued
pursuant to subsection (h) not later than 7 days after the issuance of such
decision. Such court of review shall have jurisdiction to consider such
petitions and shall provide for the record a written statement of the reasons
for its decision. On petition for a writ of certiorari by the Government or any
person receiving such directive, the record shall be transmitted under seal to
the Supreme Court, which shall have jurisdiction to review such decision.”); see
also 50 U.S.C. § 1805b (j) (2007) (“Judicial proceedings under this section
shall be concluded as expeditiously as possible. The record of proceedings,
including petitions filed, orders granted, and statements of reasons for
decision, shall be maintained under security measures established by the Chief
Justice of the United States, in consultation with the Attorney General and the
Director of National Intelligence.”); see also 50 U.S.C. § 1805b (k)
(2007) (“All petitions under this section shall be filed under seal. In any
proceedings under this section, the court shall, upon request of the
Government, review ex parte and in camera any Government submission, or
portions of a submission, which may include classified information.”); see
also 50 U.S.C. § 1805b (l) (2007) (“Notwithstanding any other law, no cause
of action shall lie in any court against any person for providing any
information, facilities, or assistance in accordance with a directive under
this section.”); see also 50 U.S.C. § 1805b (m) (2007) (“A directive
made or an order granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive or such order is
made.”).

[17]See generallyGina Marie Stevens & Charles Doyle,
Congressional Research Serv., Privacy: An Abbreviated Outline of Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2008), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/98-327_9-2-2008.pdf
(“The Protect America Act (P.L. 110-55), which has since expired, granted the
Attorney General and the Director of National Intelligence the power, under
limited conditions, to authorize gathering foreign intelligence information,
including by electronic surveillance, (for up to a year) relating to persons
believed to be overseas. In order to exercise that power, the Attorney General
and the Director of National Intelligence were required to certify under oath
that the collection effort involved: (1) procedures reasonably calculated to
assure that the information sought concerned a person outside the United
States; (2) communications to which service providers or others had access; (3)
a desire, at least in significant part, to gather foreign intelligence
information; (4) accompanying minimization procedures; and (5) no electronic
surveillance other than that directed at a person reasonably believed to be
abroad, 50 U.S.C. 1805b(a)(expired). That having been done or in emergency
situations with their oral approval, the Attorney General and Director of
National Intelligence might direct the communications providers, or others with
access, to immediately assist in the gathering of the foreign intelligence
information in a manner least disruptive of service to the target and under
confidentiality restrictions imposed by the Attorney General and the Director
of National Intelligence. The directive came with the promise of compensation
at prevailing rates as well as immunity from civil liability and was
enforceable through the contempt power of the FISA court. Recipients were
entitled to seek judicial modification of a directive, issued contrary to the
statute or otherwise unlawfully, in the FISA court under expedited procedures.
The FISA court was also tasked with the responsibility of reviewing the
procedures crafted to ensure that the authority was only invoked with respect
to persons reasonably believed to be found overseas. Should the court have determined
that the procedures were clearly erroneous, the government was free to amend
them or to appeal the determination initially to the Foreign Intelligence
Surveillance Court of Review and then to the Supreme Court.”).

[18]But seeElizabeth B. Bazan, Congressional Research
Serv., The Foreign Intelligence Surveillance Act: An Overview of Selected
Issues (2008), available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL34279_7-7-2008.pdf
(“Generally, the full extent of Fourth Amendment protections attach to the
privacy interests of U.S. persons within the United States. Fourth Amendment
protections also attach to U.S. citizens abroad. However, the operation of its
protections outside the United States may differ from that in the United States
due to the fact that a citizen abroad may not have the same expectation of
privacy. In addition, the Warrant Clause of the Fourth Amendment may not apply
outside the United States where U.S. magistrates have no jurisdiction. A
determination whether interception of a communication abroad is lawful turns
upon the law of the country where the interception occurs, so, depending upon
location, the rights available may differ significantly. In addition, the
availability of Fourth Amendment protections are affected by whom the search
was executed, and the extent of any U.S. role. If the U.S. plays no role, then
the Fourth Amendment does not attach, and the exclusionary rule does not apply
to evidence obtained by or derived from such a search unless the foreign
conduct “shocks the conscience.” On the other hand, if warrantless electronic
surveillance targeted at a U.S. citizen’s communications is conducted abroad
for the purpose of gathering foreign intelligence by U.S. officials, the U.S.
district court in United States v. Bin Laden, 126 F. Supp. 2d 264, 277
(S.D.N.Y. 2000), has held that it will be deemed reasonable if it is authorized
by the President, or the Attorney General pursuant to the President’s
delegation, and the surveillance was conducted “primarily for foreign
intelligence purposes and . . . targets foreign powers or their agents.””)
(internal footnotes omitted).

[20]SeeEdward C. Liu, Cong. Research Serv.,
Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008),
available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf
(“On July 10, 2008, P.L. 110-261, entitled the FISA Amendments Act of 2008, was
signed into law. Although many of the changes enacted by the FISA Amendments
Act were controversial, one particularly contentious issue was whether to grant
retroactive immunity to telecommunications providers that may have facilitated
warrantless surveillance by the federal government under a Terrorist
Surveillance Program between 2001 and 2007. Proponents of retroactive immunity
argued that it was necessary to assure private cooperation with critical
intelligence investigations. On the other hand, opponents of retroactive
immunity argued that its inclusion undermined the statutory penalties that were
designed to deter unlawful intrusions into individual liberties.”).

[21]SeeEdward C. Liu, Cong. Research Serv.,
Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008),
available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf
(“Plaintiffs suing telecommunications providers, and others, argue that the TSP
was not lawful under either Title III or FISA. Many of the details of the TSP
remain classified, but it apparently authorized the surveillance of
international communications without a judicially issued warrant if there was a
“reasonable basis to conclude that one party to the conversation [was] a member
of al Qaeda.” That determination appears to have been made by intelligence
officials, and was reported to have been reviewed every 45 days. In contrast,
Title III and FISA only allow warrantless surveillance for shorter periods of
time in most circumstances. Statements by officials in the Bush Administration
appear to acknowledge that the TSP was conceived and operated outside of the
procedures authorized by either Title III or FISA.”) (internal footnotes
omitted).

[22]SeeEdward C. Liu, Cong. Research Serv.,
Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008),
available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf
(“In late 2005, the New York Times reported that the federal government had
“monitored the international telephone calls and international e-mail messages
of hundreds, perhaps thousands, of people in the United States without
warrants.” Subsequently, President Bush acknowledged that, after the attacks of
September 11, 2001, he had authorized the National Security Agency to
“intercept international communications into and out of the United States” by
“persons linked to al Qaeda or related terrorist organizations” based upon “his
constitutional authority to conduct warrantless wartime electronic surveillance
of the enemy.” The revelation of the existence of the TSP aroused controversy
because it appeared to run afoul of the general rule[22] that electronic
surveillance by the federal government is unlawful unless conducted pursuant to
the Foreign Intelligence Surveillance Act (FISA) or Title III of the Omnibus
Crime Control and Safe Streets Act (Title III). In contrast, the Bush
Administration’s position has been that such warrantless surveillance is lawful
under the President’s constitutionally granted authority and the Authorization
for Use of Military Force (AUMF) enacted by Congress in 2001. On Jan 17, 2007,
a letter from the Attorney General to Congress indicated that “any electronic
surveillance that was occurring as part of the Terrorist Surveillance Program
[would] be conducted subject to the approval of the Foreign Intelligence
Surveillance Court.” Now discontinued, the TSP appears to have been active
from shortly after September 11, 2001, to sometime in January of 2007.”)
(internal footnotes omitted).

[23]SeeEdward C. Liu, Cong. Research Serv.,
Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008),
available athttps://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf
(“As enacted, the FISA Amendments Act lays out a procedure for the Attorney
General to bring about the dismissal of lawsuits alleging unlawful
participation in the Terrorist Surveillance Program (TSP). In order for a suit
to be dismissed by a court, the Attorney General must certify that the
defendant provided assistance in connection with the TSP and was given written
assurances that the program was authorized by the President and determined to
be lawful. The Attorney General could also certify that the alleged assistance
was not in fact provided by the defendant. All parties are permitted to submit
documents and arguments relevant to dismissal which the court may consider.
Dismissal is only proper if the court finds, based upon its review, that the
Attorney General’s certification is supported by ‘substantial evidence.’”).

[24] FISA, 50 U.S.C. § 1801
(f) (“‘Electronic surveillance’ means—(1) the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a particular, known United
States person who is in the United States, if the contents are acquired by
intentionally targeting that United States person, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes; (2) the acquisition by an
electronic, mechanical, or other surveillance device of the contents of any
wire communication to or from a person in the United States, without the
consent of any party thereto, if such acquisition occurs in the United
States, but does not include the acquisition of those communications of
computer trespassers that would be permissible under section 2511(2)(i) of
title 18, United States Code; (3) the intentional acquisition by an electronic,
mechanical, or other surveillance device of the contents of any radio
communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes, and if both the sender and all intended recipients are
located within the United States; or (4) the installation or use of an
electronic, mechanical, or other surveillance device in the United States for
monitoring to acquire information, other than from a wire or radio
communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes.”) (emphasis and underlining added).

[25] Of the 4 categories
that qualify as “electronic surveillance” under FISA, 3 apply only to
“communications.” The 4th definition applies to the installation or
use of an electronic, mechanical, or other surveillance device in the United
States for monitoring to acquire information, other than from a
“communication,” but it also contains the reasonable expectation or privacy
loophole so that it is not considered to be “electronic surveillance” if
officials can get the consent of a third-party. FISA, 50 U.S.C. § 1801 (f)
(“‘Electronic surveillance’ means—(1) the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or
radio communication sent by or intended to be received by a particular,
known United States person who is in the United States, if the contents are
acquired by intentionally targeting that United States person, under
circumstances in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes; (2) the acquisition by
an electronic, mechanical, or other surveillance device of the contents of
any wire communication to or from a person in the United States,
without the consent of any party thereto, if such acquisition occurs in the
United States, but does not include the acquisition of those
communications of computer trespassers that would be permissible under
section 2511(2)(i) of title 18, United States Code; (3) the intentional
acquisition by an electronic, mechanical, or other surveillance device of the
contents of any radio communication, under circumstances in which
a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender and all intended
recipients are located within the United States; or (4) the installation
or use of an electronic, mechanical, or other surveillance device in the United
States for monitoring to acquire information, other than from a wire or radio
communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes.”) (emphasis and underlining added).

[26] FISA, 50 U.S.C. § 1801
(f) (“‘Electronic surveillance’ means—(1) the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a particular, known United
States person who is in the United States, if the contents are acquired by
intentionally targeting that United States person, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes; (2) the acquisition by an
electronic, mechanical, or other surveillance device of the contents of any
wire communication to or from a person in the United States, without the
consent of any party thereto, if such acquisition occurs in the United
States, but does not include the acquisition of those communications of
computer trespassers that would be permissible under section 2511(2)(i) of
title 18, United States Code; (3) the intentional acquisition by an electronic,
mechanical, or other surveillance device of the contents of any radio
communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes, and if both the sender and all intended recipients are
located within the United States; or (4) the installation or use of an electronic,
mechanical, or other surveillance device in the United States for monitoring to
acquire information, other than from a wire or radio communication, under
circumstances in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes.”) (emphasis and
underlining added).